Mukasey vote: too close to call

Who’da thunk it two weeks ago? But it looks like Tuesday’s Senate committee vote on attorney general nominee Michael Mukasey will be a nail biter.

As more lawmakers plan to oppose Mukasey’s nomination over his refusal to condemn “waterboarding” as a form of torture – yesterday Sens. Dick Durbin and Sheldon Whitehouse said that they will vote “no” (WaPo) – Senate Judiciary Committee Chairman Patrick Leahy finally picked a date for the confirmation vote yesterday after Mukasey sent lawmakers a letter outlining his position – or lack thereof – on the interrogation technique.

In announcing Nov. 6 vote, Leahy said in a statement, “My hope is that by scheduling the consideration for next Tuesday, Senators will have an opportunity to consider the recently received written responses from the nominee and will be prepared to debate the nomination and vote.”

In those documents (.pdf file here), Mukasey said the technique – placing a cloth over a the face of a person bound to a board and pouring water over the person’s head to simulate drowning – was “on a personal basis, repugnant to me” but added “hypotheticals are difference from real life, and in any legal opinion the actual facts and circumstances are critical.”

The answer demonstrated the rock and the hard place between which Mukasey sits: he loses senate votes if he defends the tactic, but if he denounces it he would be condemning an interrogation technique currently sanctioned by the government.

UPDATE: Add Sen. Edward Kennedy to the list of senators who will vote “no.”

“Waterboarding is torture. Period. Yet Judge Mukasey refuses to say so,” Kennedy said today on the Senate floor. “His refusal was so extraordinary and unexpected that we asked the Judge a series of further questions to help us understand why an able, experienced lawyer would find it so difficult to agree that a practice used in the Spanish Inquisition was torture. But our questions were met with equivocation and evasion.”